Oh, yeah, in the alternative, I would have dismissed the complaint on another ground

Bauman v Mount Sinai Hosp., 2010 NY Slip Op 03034 (1st Dept. 2010).  I am glad I got your attention.  Read the bold portion of the opinion.

“In 2005, plaintiff brought an action for money damages against defendants and others in the Southern District of New York, alleging federal claims for violation of the Health Care Quality Improvement Act of 1986 (42 USC § 11101 et seq.) and the Racketeer Influenced and Corrupt Organizations Act (18 USC §§ 1341, 1343 and 1347), as well as state common-law claims for defamation and fraud . The federal court dismissed the action on alternative grounds. First, the court applied the doctrine of primary jurisdiction and held that plaintiff first should have presented his claims, which involved reviewing medical data, to the New York City Public Health Council (PHC) because of its expertise in that area (Bauman v Mount Sinai Hosp., 452 F Supp 2d 490, 499-501 ). Second, the court, after reviewing the factual allegations in the case, held that “assuming the doctrine of primary jurisdiction is inapplicable, I consider plaintiffs’ claims on the merits and conclude that they are without merit” (id at 499). In this action, plaintiff asserts claims for discrimination and retaliation under New York City Administrative Code § 8-107, alleging that his suspension and termination were motivated by bias against his and his patients’ creed. Supreme Court granted defendants’ motion to dismiss, concluding, based on the federal action, that this action was barred by res judicata. While the claims in the federal action and this action arise out of the same events and plaintiff could have asserted his current claims before the federal court (see O’Brien v City of Syracuse, 54 NY2d 353, 357-358 ), the federal dismissal does not operate as a bar here. That court’s ruling on the merits does not have preclusive effect because its alternative ground for dismissal (primary jurisdiction) did not go to the merits, and standing alone, would not have res judicata effect (see Restatement of Judgments § 20, Comment e; see also Tydings v Greenfield, Stein & Senior, LLP, 11 NY3d 195, 199 )

I am telling you – the First Department has become quite unpredictable lately.  Gone are the days when this Court wrote opinions that were the bellwether of all of the Departments of the Appellate Division.  Expect the unexpected, those are my thoughts.  On a similar note, I hope Defendant moves to certify the following question to the Court of Appeals: “Was our decision correct?”

In the no-fault context, I think a cunning attorney could really turn a few heads if they properly apply this case to the correct fact pattern.

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